Tuesday, December 7, 2010
The U.S. Supreme Court granted cert on Monday to hear American Electric Power Company, Inc. v. Connecticut. The case, on petition from the Second Circuit, was brought by several states against the entities they contend are the leading causers of global warming in the U.S. It hasn't gone to trial yet. What's significant about the case--both as a matter of legal theory and policy--is that the theory of the case is based on nuisance. Via SCOTUSblog, a statement of the issues:
Issue: (1) Whether states and private parties may seek emissions caps on utilities for their alleged contribution to global climate change; (2) whether a cause of action to cap carbon dioxide emissions can be implied under federal common law; and (3) whether claims seeking to cap carbon dioxide emissions based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct would be governed by “judicially discoverable and manageable standards” or could be resolved without “initial policy determination[s] of a kind clearly for nonjudicial discretion.” (Sotomayor, J., recused.)
Plain English Issue: Whether federal law allows states and private parties to sue utilities for contributing to global warming. (Sotomayor, J., recused.)
Again, what's implied in this issue statement is that the case is based on (federal) nuisance (common) law. You can read an analysis from Lyle Denniston on SCOTUSblog (scroll down a bit), and view the links to the briefs, orders, and amici at SCOTUSblog here. There are lots of conlaw and administrative law bigwigs and interest groups on both sides of what will likely be an important case.